The Treaty of Waitangi Exception in New Zealand’s Free Trade Agreements

Amokura Kawharu’s Chapter 11 discusses the “Treaty of Waitangi” exception that is now included in each of New Zealand’s FTAs. The exception is intended to enable the New Zealand government to enact measures in order to give effect to its obligations to Māori under the Treaty of Waitangi, even if the measures are inconsistent with obligations assumed by New Zealand under the FTAs. It has also served as a precedent for other states looking to include a General Exception to protect Indigenous rights. Professor Kawharu examines the circumstances surrounding the adoption and continued use of the exception in New Zealand’s FTA practice as well as the adequacy of the exception in the context of the increasing depth and scale of New Zealand’s participation in FTAs (and, in particular, New Zealand’s expanding commitments with respect to the protection of foreign investment) and proposes options for Māori to consider as means for addressing the issues.